The perils that Durov experienced under the repressive Kaiser’s regime should sound all too familiar today. When is freedom of speech under the First Amendment allowed and when should “free speech” be restricted? The editors of The Berkshire Eagle published a letter I wrote in 2019 shortly after my novel was published. My letter, which challenged the traditional definition of free speech, seems all the more applicable today.
I wrote back in 2019…the standard for what constitutes free speech in the U.S. is commonly thought to be derived from a 1919 U.S. Supreme Court case in which Justice Oliver Wendell Holmes Jr. introduced the “clear and present danger” test to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press or assembly. “You can’t shout fire in a crowded theater” came to be a bright-line test of when free speech crossed the line into an act that would precipitate violence. “Your right to swing your arm ends at the tip of the other man’s nose” is another way of looking at this standard.
But now we are faced with violence-advocating speech, not only by individuals in personal appearances but in many electronic forms. Facebook and Twitter have struggled and are finally removing hate speech postings that will likely lead to violence, but still these postings find their way into the dark corners of our society. And finally Congress has taken action to impeach a President who, in his rallies, advocates violence and, even more recently, the overthrow of democratic processes.
It used to be that the remedy for “hate speech” was “more speech.” In the mid-1970s, a neo-Nazi group, ironically backed by the American Civil Liberties Union, was given permission under the First Amendment to hold a rally in Skokie, Ill., an enclave with a large proportion of Jewish Holocaust survivors. No violence — only emotional suffering by the local population — was apparently contemplated and was insufficient cause to limit the free speech rights of the neo-Nazi group. Compare that to the events in Charlottesville that led to one death by an out-of-control protester. And shootings in El Paso by a vigilante spurred on by a President’s hate speech.
A year and a half after I wrote my letter, we have the starkest lesson of all…the recent events at the Capitol. It is time to revisit the issue of freedom of speech when the correlation of hate speech to violence becomes so much more believable.
With journalists under Stalinesque attack as “enemies of the people,” they especially must be on high alert for violence directed at them. This is increasingly motivated by a “base” that seems immune to obeying the boundaries of where to swing your arm (or aim your assault rifle) and where that tip of the nose is for journalists, political opponents and just plain citizens going about their day.
Unfortunately, how we redefine the concept of freedom of speech is not entirely clear. Actions by Twitter, Facebook, Google and Amazon that restrict clear calls to violence are a welcome start. But as this debate continues, we should all be concerned about a slippery slope that empowers any entity in today’s polarized society to be the sole arbiter for limiting free speech.